Tuesday, March 15, 2011

Will 'ick!' and 'eek!' be enough of a legal argument to sustain prejudice against gays?

From DOMA Laid Bare ---House Republicans defense of (the Defense of Marriage Act) will be rooted in their own ugly history by Linda Hirshman in Slate:

A bunch of academic social science types have now concluded that intact biological families aren't better at childrearing than adoptive or same-sex couples are. It's been years since any expert said anything else. The defendants in the only marriage case to actually proceed to trial, California's Perry v. Schwarzenegger, couldn't even find anyone to put on the stand and say it. As long ago as 1996, Congress failed to unearth any authority for the threat posed by gay marriage to heterosexual marriage either..... On the danger to marriage, then, defendants must argue therefore that a discriminatory law can rest on Congress' choice of groundless fears over all existing social science....

if the (U.S.) Supreme Court ultimately accepts the DOMA as a constitutional exercise in Congress' lawmaking powers, after it sees what Congress first had in mind, it will set a new low for how far a majority can go in imposing indefensible concepts of morality on a despised and marginalized minority.

Posted at 08:31:34 AM

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I would certainly trust the conclusions of academics vs. recorded history.

"A bunch of academic social science types have now concluded that intact biological families aren't better at childrearing than adoptive or same-sex couples are. It's been years since any expert said anything else."

Please.

This again gets at the core of what irks many people about gay marriage. Civil unions weren't good enough. And now legalizing gay marriage doesn't seem to be good enough -- there seems to be a need (dare I say demand) for us heteros to agree with the quote above. It's the whole "approval" thing.

I support, tolerate, and accept gay marriage. But I'm not giving approval to the concept that its childrearing prosepcts are on equal footing with hetro couples. I will NEVER be convinced that a hetero couple does not have advantages to childrearing than a gay couple. That does not mean there aren't wonderful gay parents or horrible hetero parents. Studies showing the contrary are flawed.

We will now hear from people stating they don't care and never cared about my approval. I call BS.

ZORN REPLY -- Your problem is that "advantages" are going to be very hard to measure, and once we agree on metrics and perhaps find some wayin which you can measure the "advantages" of hetero parenting, using that to prevent gays from parenting puts you in a trick bag. If "advantages" creates the line, then what if social science shows that, by these same measures, people under a certain income level are disadvantageous parents. Should we bar them, on these statistical grounds, from marrying and adopting?
To my mind, the bar ought to be set high for you impose your idea of the limits of marriage on those who wish to marry.
You , MCN and others who weigh in here against gay marriage never manage to bring it; to make the case that maintaining your prejudice is important enough to deny gay couples the right to marry under the law.

The Linda Hirshmans of the world can call us all of the names that they like but the name-calling is empty when they haven't made a coherent case for either: (a) having the government regulate personal relationships outside of marriage or (b) radically redefining marriage, which is an institution that many of the same liberal thinkers have tried to destroy with no-fault divorce, etc., but now is an important right because it suits a modern trend that they like.

Brian, you sound like my friend who says she doesn't "believe" in braces to straighten your teeth. Facts are facts. You don't have to approve it at all, though. The main problem now with "civil unions" vs "marriage" is Federal benefits. You don't have to approve that either, as long as all couples (in what is a 2-party contract) get the same benefits. And Greg J, I know that we've been through this before, but marriage has been "radically redefined" many times, for instance when wives stopped being the possession of the husband & became partners, and could make their own contracts (buy a car, for instance) without the other party checking with him. That was pretty radical, don't you think?

An analogy...everyone should have the right to free speech -- both the smart and the dumb. But that's different than saying the dumb have just as many good things to say as the smart. And it shouldn't affect whether free speech is a right.

Regarding "facts are facts," we will likely never agree on these "facts." There are too many variables (and agendas) to account for.

It might have been radical, sure, but it's not peculiar to the institution of marriage. Gender role expectations have changed significantly among married couples, parents-children, co-workers, etc. over time.

And your response demonstrates my point about why we aren't listening to those who call us names in the course of this debate. We make an argument and the other side says "what you really mean is 'ick'." That debate tactic may lack in sophistication but it's easier than making a serious argument and it works for everything. Thanks for proving me right.

Well, maybe, Greg, we wouldn't accuse others of the "ick' factor if they didn't show themselves to be abhorrent towards any idea that homosexuals deserve a place in our society. This isn't just about the marriage question and you know it.

Pan, you and Zorn et al. have already decided that any argument against homosexual marriage is ipso facto bigoted, so why should I even bother? As GregJ said, thanks for proving me right.

Wendy, it is utterly false and baseless to assert that those opposing homosexual marriage are "abhorrent towards any idea that homosexuals deserve a place in our society." That is completely false, and you know it. In case I have to prove it, I had a gay uncle--my godfather, in fact-- and one of my best friends from high school is gay. As long as he doesn't put his hand on my thigh, he'll stay one of my best friends.

I have said many times that I could not care less what homosexuals do to each other in the privacy of their homes. I just don't recognize that any relationship they have can rise to the status of marriage. Your side has already that the obvious reasons against gay marriage are merely borne of bigotry, and I am not inclined to respond to that specious reasoning and name calling.

Greg, you can accuse me of namecalling all you want, but that doesn't change the fact that your argument assumes what it's trying to prove. Same-gender marriage is "radical," which is unacceptable, and it's "radical" because it's same-gender marriage. It all boils down to "I don't like it because it's icky." I'm sure you're a person of highly refined sensibilities, but forgive me if I don't think those sensibilities should form the basis for laws that all of us have to obey.

---Well, Pan, it seems to me that your side merely assumes the justice of its argument without substantiating anything, to wit: "Same-sex marriage is just and moral, so it is mandated." It all boils down to "I like it because I like it." I'm supposed to be impressed?

ZORN REPLY -- Perhaps this boils down the deference one pays tradition? Otherwise I really can't parse our the objections of our more learned contributors here.
Generally the conservative position tends toward the libertarian -- The government ought not stand in my way unless it can articulate a good public policy reason why abridging my freedoms is necessary for the common good.
I realize there are loaded terms in there and lots to debate about, but when it comes to two men or two women asking to enter into a solemn, legal and social contract with one another that one man and one woman are allowed to enter into, I simply have never heard a "common good" reason that passes the smell test.
Most of your arguments, Mike, and I mean this respectfully, strike me as principled. Even when I disagree with you, which is often, I respect the animating idea at the root of our divergence. I hope you generally feel the same way.

Same gender marriage is radical because it is without any historical precedent and does not fit with the purpose for which the institution was developed. I'm not advocating creating a law that you are asked to obey. Rather I'm questioning the wisdom of involving the government in regulating a relationship in which it need not be involved.

It doesn't bother me a whole lot that your side keeps pushing the "ick" argument as the only possible reason that someone like me doesn't agree to this bold legal innovation, but don't you think that it's at least logical, or even remotely possible, that a person who consistently argues against increasing the scope of government involvement in our lives, and believes that many benefits for married couples should be reduced, would have a problem with expanding the definition of marriage and granting new benefits?

--@Eric: I am very grateful for your reply to my comment. Our bases for disagreement rest largely on highly controversial issues which, frankly, stir up interesting discussion on a blog like this. As with you, I find your arguments also to be principled.

I'm not going to respond to your comment substantively because to do so I think takes away from the true point that, these controversial issues aside (which appear to amplify or differences), you and I would find ourselves in close agreement on many more important issues.

Maybe you get invited to the next NeubyDinner. I'd line up a couple of other lefties to keep you company, thought I doubt that even if it were 9:1 against you'd feel yourself outnumbered (as I would not if the tables were turned) as I'm pretty sure you can take care of yourself.

ZORN REPLY -- Sounds like game on. But I get to bring Mr.JM and at least one other second!

Because, to me, the issue is about the legal protections afforded thereto, and the not "separate but equal" alternative to calling gay unions "marriage" under the law is to excise "marriage" from all the statutes and, legally speaking, have the legal protections afforded to "civil unions" for *everyone*, gay and straight.

Then, "marriage" is protected from tehgays, who will all called themselves "married" anyway.

If some here are so against government intrusion, why do they support Congress' creation of The Defense of Marriage Act? If and when this does come before the Supremes, won't it be eliminated for the very reason that government should NOT define marriage? The case in California was decided because it showed that a constitutional ban on gay marriage was government interfering in the lives of others by denying them the right to marry, plus the added discrimination forced on gay couples due to this ban. Even as downstate Republicans fought against civil unions, arguing they are marriages in everything but name. They know it's inevitable this will come before the high court as well.

As for historical precedent, how is this allowed as an argument? Marriage has changed many times, from incestuous unions, to those based on race, color, social class, number of spouses, religions...I could go on and on. The only definitions reside in religious laws, something that cannot hold up before the court. So, we're left with effects on society and children. The same arguments brought up when I speak of tolerance for gays in schools, these don't wash either and were shot down in California.

So, tell me, esteemed attorneys, what do you have left to argue before the court as to why a select group of individuals should be denied freedoms enjoyed by heterosexuals? And don't tell me they have the right to marry women, when this is intrinsically impossible for them.

I thought I could invite Phil V and a quite liberal ex-colleague of mine. Also, I think j meehan at one point was trying to wrangle an invitation. I'd have to get bona fides, though. This is a boy's night in and no riff-raff invited.

My lovely and charming wife sets a very good table and my liquor is first-rate.

If a law that says "you cannot get married, ever" isn't "government involvement in our lives," the phrase has no meaning. You can appeal to historical precedent all you want, Greg, but you can't escape the fact that that precedent was rooted in nothing else but prejudice and animosity toward gays.

"If some here are so against government intrusion, why do they support Congress' creation of The Defense of Marriage Act?" That's easy. The Defense of Marriage Act limits the extent of government intrusion into personal relationships by defining the boundaries of what types of relationships the government will regulate (i.e., traditional marriage but nothing else).

"If and when this does come before the Supremes, won't it be eliminated for the very reason that government should NOT define marriage?" I'm not sure I understand. If the government is going to regulate marriage it has to be able to define the term. Otherwise, how do we know what it is regulating?

"The case in California was decided because it showed that a constitutional ban on gay marriage was government interfering in the lives of others by denying them the right to marry, ..." Hold on a second. What part of the opinion discusses "government interference?" Further, you are turning the definition of "interference" on its head. The government interferes when it becomes involved. Currently, the government does not interfere with homosexual relationships because it does not regulate or even legally recognize them.

"Marriage has changed many times, from incestuous unions, to those based on race, color, social class, number of spouses, religions...I could go on and on." Careful here. First of all, your examples show how certain restrictions were put on marriage at certain places and times, but: (a) marriage always involved a man and a woman; (b) the restrictions weren't universal. The example that has the best chance of helping your argument is polygamy but there are a few problems with that (that I won't get into right now).

"So, tell me, esteemed attorneys, what do you have left to argue before the court as to why a select group of individuals should be denied freedoms enjoyed by heterosexuals?" Everything that I wrote above and that the government doesn't have a legitimate interest in regulating homosexual relationships. And, as you point out, there is no discrimination because everyone has the right to marry. I'm far from convinced that the so-called "intrinsic impossibility" to exercise the freedom is evidence of discrimination. However, it might be your best argument.

ZORN REPLY -- I know your posts from other threads too well to accuse you of dishonesty, Greg, so the only thing left is pure, stubborn opacity.

"The Defense of Marriage Act limits the extent of government intrusion into personal relationships by defining the boundaries of what types of relationships the government will regulate (i.e., traditional marriage but nothing else)."

Please. You really don't think this is what DOMA was about, do you? What inspired the bigots who enshrined DOMA into law? A desire to limit the extent of government intrusion into regulatory matters?

Would you have a problem, then, if the federal government decided it had no interest in regulating "marriage" involving women who are past childbearing years, and therefore daintily declined to recognize them?

Come on. You and everyone reading this knows full well that this was not an effort to limit federal power, but an effort to allowing states to continue to extend prejudicial laws against gay people. If DOMA falls, or should I say when DOMA falls, all it will require will be for, say, Illinois to recognize all marriages performed in Massachusetts the same way it must recognize all marriages performed today in, say, Ohio.

Is it your view that it's some intolerable regulatory/paperwork burden on the state and/or individuals to recognize such relationships? That the cost/burden of such recognition (it is not compulsory on individuals) creates a cost that you, Greg J., must bear?

You hang your entire argument on the idea that because, in your view, government has no interest in promoting a lifelong legal bond between gay couples -- or should I say an insufficient interest -- then these people should not have the right to avail themselves of the advantages of this legal bond?

Can you even begin to see how utterly incoherent and bizarre this argument is? How completely unpersuasive, even silly it is? How much, despite yourself, you sound like a disgraceful bigot?

I mean, word to the wise, my friend... it's one of the weakest arguments I've ever read opposing gay marriage, and I've read a lot of them.

To me, it's all about getting government out of regulating everything but that in which it has a legitimate interest. It has a legitimate interest in promoting stable family units, which serve as the fundamental building block of our society. It also has a legitimate interest in allowing people to form contracts and to enforce those contracts.

The reason that I support traditional marriage is that it seems to be the most politically viable way of keeping government involved in what it should be regulating and out of what it shouldn't be regulating. I recognize that it's far from perfect, however, as there are far too many extraneous benefits given to married couples, it's too easy to divorce (which can unfairly benefit one spouse and burden the other (and the children)), and it can be a burden for non-married couples to enter into the contracts that they would like. However, politics isn't about perfection - although we should do the best we can. In my opinion, we should be reducing government involvement in personal matters and reducing benefits given to married people, so expanding marriage is a step in the wrong direction. However, an overhaul or serious reform would be the best answer.

Your civil union idea is appealing because it would allow us to reduce government involvement to only what is essential (if it was done correctly) and it would get government out of what should be primarily a religious institution anyway. There are a lot of issues that would have to be addressed but that's the case anytime you propose a reform.

"That's easy. The Defense of Marriage Act limits the extent of government intrusion into personal relationships by defining the boundaries of what types of relationships the government will regulate (i.e., traditional marriage but nothing else)."

That's the best example of an oxymoron that I've ever heard of, nice try.

"I'm not sure I understand. If the government is going to regulate marriage it has to be able to define the term."

I'm confused, hasn't the basis for your argument been that the Constitution doesn't define marriage?

"The government interferes when it becomes involved."

Are you trying to tell me the government does not interfere when it denies a select group rights and benefits enjoyed by others?

"First of all, your examples show how certain restrictions were put on marriage at certain places and times.."

Were they restrictions, or were they acceptance of practices that today we no longer allow? So, why should we not allow practices previously denied, as we often have?

"I'm far from convinced that the so-called "intrinsic impossibility" to exercise the freedom is evidence of discrimination. However, it might be your best argument."

Exactly, and this is where we on the side of equal rights for gays will prevail.

EZ: Back on track, I've yet to hear a convincing argument in favor of gay marriage, and I don't consider laws precluding it to be prejudicial. What you have not provided is a sound argument for altering the institution of marriage--one that has been, to the best of my knowledge, an almost entirely heterosexual one throughout history--to one that encompasses homosexuals.

To say that this is radical understates the issue.

At any rate, I would really like to hear an argument that goes beyond ejaculations and exclamations that "it's just" or "it's moral" or "those against it are bigoted" or the usual tommyrot, all of which assume the answer. Perhaps we can discuss it over dinner and a nice Highland malt.

ZORN REPLY -- I don't know that it alters the institution of marriage any more than giving people the right to marry people of other races altered the institution ... in both instances the change was abstract and had no diluting or other effect on anyone already in the "institution." You'd have had a better argument when they lowered the voting age to 18, in that it altered the institution of voting in a way meaningful to those who already were able to vote.
Try to think analogously. It will sharpen your argument, which in this case is utterly unmoored from anything other than the appeals to tradition and custom that have been the crutch of the historically infamous.
We can agree that many discriminatory practices have had centuries of tradition behind them yet have been justly consigned to embarrassing history.
And I will point out that at every step there have been MCNish arguments offered that "there's not one good reason" to abandon these traditional forms of discrimination. Why? Because I can't see what's in it for ME and people like me.
Do you not, for example, see why a gay couple might want to get married? Why that couple wouldn't want to make and have the same sort of commitment to one another that you and your wife made and that me and my wife made? And that their union, their commitment, would provide a similar little blip of stability and security to society that our unions provide?
And that the argument for denying them that right, that opportunity, that possibility has to be strong, not a weak, theoretical to abstract appeal to tradition?
It's such a terrible argument, really, that it surprises me when smart people can't see it.

I am for gay marriage for many reasons. One reason is that, simply, I think marriage is a good thing (not that that there is anything wrong with choosing to be unmarried). I remain convinced that the opposition to gay marriage isn't the "ick" factor but a prejudice in gender equality. I think "wife" and "husband" have certain connotations and that if we move toward "spouse" some inequities that we see in insurance, military, and even trivial matters like all-men golf courses that allow women only on "wife day" will have to be rethought if we consider that some men are primary caregivers and sexually desired by other men. It's funny that with all the "won't someone think of the children" talk that almost all of the women (childrearers and bearers) I have discussed this with (from 20 to 80 year olds) also support gay marriage. Almost all the women I spoke with are Roman Catholics. My own support, which is against Catholic teaching is in fact because of my Catholicism. Catholic beliefs are often not quite right on this and other blogs. The short version is:
The teaching behind infertility treatments, birth control, premarital sex, etc. is essentially: Life, the continuation of the species, is the very basic block. Vaginal, heterosexual, married sex is a gift from God. It has many purposes. It can result in procreation. So sex must always be considered in the light of God is present, if a child results would he/she be welcomed?, am I respectful of my partner in all ways as a person (including any desire to be a parent) and respect for Woman/Mankind. (For anyone who read Roger Ebert's blog about Catholicism-he was wrong-it should be read as Gee, Mrs. Bates we knew what you did to Norman, now we know what you did to Roger).
Catholics are taught to respect a gay person but not the gay sex act. At the core, it is because gay sex can never result in procreation so it is fundamentally different that heterosexual sex and does not include the other gender. I suppose there would be a difference but not in the actions that surround such a difference. By that I mean pre- or extramarital sex, reducing someone to a sex object, respect for all people, etc.

Argue one way or the other on the merits, morality, history, child bearing and rearing, etc. all you want but the fact of the matter is that for the federal govenment to refuse to recognize marriages that are legal in any state is clearly unconstitutional

EZ: I am a bright guy, which is why, for example, I can see that your argument that permitting miscegenation is analogous fails because there was not a fundamental change to the institution, to wit: it was still marriage between a man and woman.

Marriage between man and man is entirely different and the only argument you have advanced is that you are in favor of it. To which my response is: "And?"

I can see why a gay couple could want to be married. To which I respond that desire cannot be fulfilled for obvious reasons that have nothing to do with bigotry but are based on biology and immutable differences between the sexes. Calling a dog a cat don't make it one.

ZORN REPLY -- Miscegenation violated centuries of tradition and I invite you to go back and read the arguments made by the MCNs of half a century ago in order that you might endure the shock of recognition.

Your reasoning is utterly circular. It as though, a century ago, you had argued that voting is something men do so the very idea of a female voter is as absurd as the idea of a feline dog. Calling a woman a voter doesn't make her a proper voter.

You would sit down in front of a long-term committed gay couple who wanted to enter into marriage on one side and a drunken straight couple who had just met and decided to get married on a whim and scold the gay couple that they can't avail themselves of marriage because they can't biologically have children (even though we routinely grant marriage licenses to aged or male/female couples that can't have children) and then turn to the straight couple and say, "you, on the other hand, are free to wed."

And you'd feel good about yourself afterwards?

Again, I invite you to try to think analogously -- so far you have utterly failed -- and to come up with other, similar instances where you can justify the denial of a basic social opportunity based on such a flimsy idea.

I have been teaching special education for 24 years. I have seen kids abused, abandoned, tortured and starved by their birth families. I have worked with kids who were left in the hospital by their birth mother. I have never seen a kid who suffered because he had two loving parents-of either gender.

"You would sit down in front of a long-term committed gay couple who wanted to enter into marriage on one side and a drunken straight couple who had just met and decided to get married on a whim and scold the gay couple that they can't avail themselves of marriage because they can't biologically have children (even though we routinely grant marriage licenses to aged or male/female couples that can't have children) and then turn to the straight couple and say, "you, on the other hand, are free to wed." '

Going back to the voter analogy, we don't allow intelligent and informed13-year-olds to vote, yet we allow illiterate crackheads to vote as long as they are over 18. That doesn't mean the law is wrong just because there are exceptions that would seem to invalidate the rule or make it look unjust.

ZORN REPLY -- No, but you can at least explain the public policy reason why 13-year-olds can't vote to the 13-year-old and make a case why allowing 13-year-olds to vote would harm society. This is a case you cannot -- or have not yet - made in respect to gay marriage.

Please. You really don't think this is what DOMA was about, do you? What inspired the bigots who enshrined DOMA into law? A desire to limit the extent of government intrusion into regulatory matters?

GREG J REPLY --

I don't think that I care what DOMA was about; I care about the effect of the law. There are plenty of bad laws that were passed with good intentions and good laws that were passed with bad intentions. DOMA achieves a result that I think is good overall so I have no need to look at the motives of the legislators.

ZORN REPLY --

Would you have a problem, then, if the federal government decided it had no interest in regulating "marriage" involving women who are past childbearing years, and therefore daintily declined to recognize them?

GREG J REPLY --

I wouldn't have that much of a problem with it, actually. There are practical problems with that but let's assume they could be solved. I think that the government's interest in regulating childless marriages is limited to the goal of making it easier for people enter into binding contractual relationships.

ZORN REPLY --

Come on. You and everyone reading this knows full well that this was not an effort to limit federal power, but an effort to allowing states to continue to extend prejudicial laws against gay people.

GREG J REPLY --

Again, I'm unconcerned with motive here. I don't see how motive is relevant when answering the "do you like the result?" question but of course it is when answering the legal question. If you want to get into motive, let's talk about how many liberals were involved in purposely weakening the institution of marriage but now that they've identified "gay marriage" as their favorite cause, they have rediscovered the importance of marriage again.

ZORN REPLY --

Is it your view that it's some intolerable regulatory/paperwork burden on the state and/or individuals to recognize such relationships? That the cost/burden of such recognition (it is not compulsory on individuals) creates a cost that you, Greg J., must bear?

GREG J REPLY --

Oh, come on now. In an earlier thread on this topic someone (and I think it was you) cited the exact number of marriage benefits that are given to people. It's more than a regulatory/paperwork burden and many of the benefits are barely related, if at all, to the government's legitimate purpose of keeping families together. Also, why is legal recognition of something important in its own right? If the government doesn't have an interest in regulating something then why would it have an interest in recognizing it?

ZORN REPLY --

You hang your entire argument on the idea that because, in your view, government has no interest in promoting a lifelong legal bond between gay couples -- or should I say an insufficient interest -- then these people should not have the right to avail themselves of the advantages of this legal bond?

Can you even begin to see how utterly incoherent and bizarre this argument is? How completely unpersuasive, even silly it is? How much, despite yourself, you sound like a disgraceful bigot?

I mean, word to the wise, my friend... it's one of the weakest arguments I've ever read opposing gay marriage, and I've read a lot of them.

GREG J REPLY --

I think that gay couples should not have a right to avail themselves of that particular legal bond but it's fine with me if the government wants to make it easier for them to enter into binding legal agreements. Government has a narrow interest in promoting traditional families because they form the most stable building block for society. That's where I draw the line about where government needs to be involved in regulating relationships. Homosexuals, single people, etc. are free to do whatever they want. It's none of my business or the government's business what they do or what types of contracts they enter into to sort out their personal matters.

Another concern is that our marriage laws are a mess. It's too easy to get out of marriage and the government has extended the scope of how it regulates marriage far beyond what is necessary to carry out its purpose (e.g., by giving too many benefits or benefits unrelated to its purpose). In light of that, why on earth would I support extending the institution of marriage to include new relationships? Beyond name-calling, you don't seem to have an answer. If my argument is as weak as you claim it is then you should have no problem refuting it but you haven't even attempted to do that. It seems more sensible to concentrate our efforts on reforming government involvement in traditional marriage and making it easier for people in other relationships to enter into contracts with each other (e.g., by having standard or bundled contracts).

ZORN REPLY -- Your argument simply doesn't refuting. It's self refuting. It goes in a circle and says ah ha! And it finally self-destructs when you say you have no problems with "making it easier for people in other relationships to enter into contracts with each other (e.g., by having standard or bundled contracts)," which is, of course, the dreaded government engaging in the dreaded "regulation" of a relationship.

If it's OK with you that gay couples form a comprehensively binding contract bundled together to create all the obligations and privileges of marriage, then all you're fretting about is the M word, which is childish.

If it's NOT OK with you, despite what you've written, then tell me just which obligations and privileges of marriage you would deny to gay couples seeking to generate this omnibus contract?

You wrote "That's the best example of an oxymoron that I've ever heard of, nice try."

I'm not sure where you found an oxymoron but let's pass on that. Let me make an analogy to help you out. Let's say that in State Y that taverns are regulated and restaurants are unregulated. If I want less government involvement in regulating public establishments, I'm not going to want restaurants to be reclassified as taverns. In other words, regulate taverns but nothing else.

"I'm confused, hasn't the basis for your argument been that the Constitution doesn't define marriage?"

Who said anything about the Constitution? Marriage is a state law concept. Did I miss something?

"Are you trying to tell me the government does not interfere when it denies a select group rights and benefits enjoyed by others?"

Government recognition of marriage conveys both rights and burdens. I was referring to "interference" as the act of imposing a burden. There are plenty of benefits available to some people that aren't available to others. For example, rich people are not allowed certain tax breaks that are available to poor people.

"Were they restrictions, or were they acceptance of practices that today we no longer allow? So, why should we not allow practices previously denied, as we often have?"

They look an awful lot like restrictions to me. But I'm afraid I don't understand your argument. When exactly do we decide to allow a practice that was previously denied and who gets to decide? The answer from your side seems to be "when a few liberal judges say so."

ZORN REPLY -- Your argument simply doesn't refuting. It's self refuting. It goes in a circle and says ah ha! And it finally self-destructs when you say you have no problems with "making it easier for people in other relationships to enter into contracts with each other (e.g., by having standard or bundled contracts)," which is, of course, the dreaded government engaging in the dreaded "regulation" of a relationship.

If it's OK with you that gay couples form a comprehensively binding contract bundled together to create all the obligations and privileges of marriage, then all you're fretting about is the M word, which is childish.

If it's NOT OK with you, despite what you've written, then tell me just which obligations and privileges of marriage you would deny to gay couples seeking to generate this omnibus contract?

GREG J REPLY --

There is a huge difference between government regulation and private contracts. I'm sure you understand this basic point but it seems to be getting lost in translation. Government regulation is when the government tells you that you must do something, or you can't do something, or you have to do something in a certain way. Private contracts are agreements voluntarily entered into by two parties for mutual benefit. The government only steps in to enforce what the parties agree upon.

I'm not sure how you arrive at the conclusion that what I wrote above is self-refuting or circular but, in an attempt to eliminate any confusion, I'll get real specific here. The omnibus contract would include things like visitation rights, inheritance rights, decision-making power in designated areas, etc. By the way, these are mostly things which unmarried couples can contract for now; the idea is just to make it easier by bundling them. Moreover, it would not include any burdens associated with divorce. The point is to allow people maximum freedom in arranging their personal affairs but not to provide them with benefits or impose burdens.

The omnibus contract would not include items like the following:

joint parenting, joint adoption, joint foster care, custody, and visitation, immigration and residency for partners from other countries, inheritance automatically in the absence of a will, spousal exemptions to property tax increases upon the death of one spouse who is a co-owner of the home, joint filing of customs claims when traveling, wrongful death benefits for a surviving partner and children, bereavement or sick leave to care for a spouse or child, loss of consortium tort benefits, evidentiary immunity.

I left out currently-available benefits that I believe should not be extended to married couples, and there are quite a few.

You think your argument of --we regulate marriage too much anyway, so government shouldn't continue these same regulations for even more couples-- would stand up in the high court? If so, why don't you suggest government stop all marriages after we reach a certain percentage of the population? Doesn't it cause the government more problems to have a different set of regulations for different unions based on age, gender, anything else you can think of? And what about the California decision, which decided anything less than marriage offered by the state was clearly discriminatory towards gays. Your interesting list of what you deem gays the right to have compared to what you wouldn't ALLOW them is to the point. There isn't any justification here to keep marriage away from gays.

Actually, I've yet to hear a convincing argument that you could bring to the Supreme Ct if either DOMA or the California decision comes before them. What is the harm to YOU, or anyone else? Where in the Constitution does it say less rights are acceptable for certain populations?

"When exactly do we decide to allow a practice that was previously denied and who gets to decide?"

In this country, it is the duty of the courts to decide if current practices are or are not allowed under our Constitution. They've been doing it for a couple of hundred years, now, and they manage to do a pretty good job. Can you suggest to me any other law allowing discrimination of others, ultimately shot down by the Court, that you would like to see re-instated?

Ok, here we go. Let's start by acknowledging that there are two different arguments here - the policy argument (what should we do?) and the legal argument (what does the law require?). My legal argument is simple - there is no Constitutional question here because there is no valid equal protection claim. Then I would go down the old path of --- Marriage is a state law issue, anyone can get married so there is no discrimination, there is no precedent in any established Con-law doctrine, intent, etc. If I were bringing the case to court, I wouldn't argue the merits because there is a better procedural argument (i.e., this is a matter reserved for the states). Of course you know the ultimate procedural move is to yank this issue from the jurisdiction of the courts.

You asked "Doesn't it cause the government more problems to have a different set of regulations for different unions based on age, gender, anything else you can think of?" Well, I guess it could, but I'm arguing that we only need one set of regulations and that is for married couples. I don't see much administrative problem with bundling contractual rights.

The California judge was simply wrong. I'm not going to accuse him of bias, as some have, but I will accuse him of poor legal reasoning. Law professor Robert Nagel of the University of Colorado said it best "Despite all its cerebral and legalistic trappings, Judge Walker’s opinion is not an exercise in some detached and impartial form of rationality. Like the law it invalidated, his opinion is a reflection of aspirations, fears, guesses, and moral judgments. In political debate, people generally make no pretense about the controversial and uncertain nature of their arguments. Most jurists, in contrast, believe that judicial application of the “rationality test” is different from political argumentation. It is thought to be a high intellectual exercise that constrains the worst excesses of political decision making. What is at least as frightening as the unruly world of politics is the supercilious and resolutely self-satisfied world occupied by judges like Vaughn Walker."

And I have yet to hear a convincing legal argument from the side that wants to redefine marriage. You asked "What is the harm to YOU, or anyone else?" That's not a legal argument; that's a policy argument. The harm is government intrusion into an area in which it doesn't belong. However, a judge wouldn't need to get to this question. Cases like this are rarely decided on the merits of the political argument.

You asked "Where in the Constitution does it say less rights are acceptable for certain populations?" That's sort of like asking "where in the Constitution does it mention marriage?" We can have a theoretical discussion about that if you want but I think we've already been around that block. Look, I've said repeatedly that I also don't see a rationale for the Court to come in and make abortion illegal based on a 14th Amendment claim. I'm consistent in narrowly interpreting the Constitution even when it reaches a political result that I don't like. I think that the marriage issue, much like abortion, is reserved to the states.

"Can you suggest to me any other law allowing discrimination of others, ultimately shot down by the Court, that you would like to see re-instated?"

Sure. Plyler v. Doe invalidated a state statute denying school funding to illegal alien children. I'd like to see that statute reinstated and illegal alien children sent back where they belong.

"- there is no Constitutional question here because there is no valid equal protection claim."

I disagree, the 14th and 5th Amendments cover this claim. Why is the Attorney General's office refusing to continue to defend DOMA if this is true?

As for Walker, we'll see how his opinion holds up in further contests. I'm not surprised you or others would disagree with him, based on your "aspirations, fears, guesses, and moral judgments." As for your opinion this is a political argument, I disagree, it's only political because your side chooses to make it so. It will be decided on the constitutional question.

"The harm is government intrusion into an area in which it doesn't belong."

Wrong again, the government already regulates marriages, adding gays changes nothing as far as the government is concerned.

"I'm consistent in narrowly interpreting the Constitution even when it reaches a political result that I don't like."

Especially when it reaches a conclusion you don't like, but I'll let you slide on this one. As for Plyler v. Doe, you claim marriage under your definition benefits society. Doesn't the proper education of every child in this country do the same? Even those forced to live here through no choice of their own?

We better wrap this up, tonight, I've heard it's dangerous to argue with conservatives on St. Patrick's Day.

You asked "Why is the Attorney General's office refusing to continue to defend DOMA if this is true?" The AG's office is pursuing a political agenda; that's why. Obama needs some help with his liberal base so he wants to send a message by refusing to defend the law.

The criticism of Walker is that he's deciding the issue as if he's a politician when he should be concentrating on the legal issues in his role as a judge. However, the issue itself is political because it should be decided by our elected representatives who are responsible for writing statutes. A statute that they should be writing is to take this issue out of the jurisdiction of the courts.

Regarding Plyler v. Doe, I don't believe that the education of illegal alien children benefits our society. What would benefit our society would be to round them up and get them out by any means necessary. I think that every parent should have to show proof of citizenship before their children are admitted to our schools. I don't mean to go to far off-topic here but our government (both D's and R's) has so completely failed us in the area of controlling illegal aliens that we citizens need to start taking steps of our own. For instance, I'm all for jury nullification when it comes to crimes committed against illegal aliens. If I'm on a jury deciding a case where such a crime has been committed, my automatic vote is "not guilty." We need to encourage measures such as tough laws against employing aliens, private citizen border enforcement, and rewards for information leading to deportation. Watch for this issue in the 2012 election.

Ok, I'm all for wrapping up unless you want the final word. But I will have you know that I think I'm very pleasant to argue with even on St. Patrick's Day! My ancestors are mostly French (do NOT tell my conservative friends that - especially MCN) anyway so I'm more of a Bastille Day kind of guy.

This issue will only be decided by elected officials if they back off on DOMA and other measures to limit choices for homosexuals. Most of the country is leaning their way now, it's no longer a favorable political issue for Republicans. I believe you'll see very few, if any, Republican candidates for President take up this issue. If they don't back off, the Court will decide.

As for illegal immigration, I'll put off that argument for now unless Eric starts a new thread. You'll be interested in knowing one of the IL State Rep's is trying to introduce an Arizona type law in Springfield. Of course, it will never pass.

Greg, it's always interesting to argue with you, even though I hope one day you'll see the light. My Austrian-German ancestors are known for their stubbornness, so I'll keep trying. Happy St Pat's Day!

About "Change of Subject."

"Change of Subject" by Chicago Tribune op-ed columnist Eric Zorn contains observations, reports, tips, referrals and tirades, though not necessarily in that order. Links will tend to expire, so seize the day. For an archive of Zorn's latest Tribune columns click here. An explanation of the title of this blog is here. If you have other questions, suggestions or comments, send e-mail to ericzorn at gmail.com.
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Contributing editor Jessica Reynolds is a 2012 graduate of Loyola University Chicago and is the coordinator of the Tribune's editorial board. She can be reached at jreynolds at tribune.com.